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Friday, 15 May 2015

Italy falls into line. Via our friend and former guest Kat Alberto Bellan comes news which will be of the greatest interest and importance to those following developments concerning the gradual crystallisation of the European Union's plans for a single patent. Via the official website of the Italian Ministry of Economic Development, here, and carefully translated by Alberto, this news emerged on 13 May:

"The unitary patent is a priority for the Ministry of Economic Development. After the CJEU's decision of 5 May[noted by the IPKat here; discussed further here and here] that rejected Spain's claims, we have confirmation that that the Unitary Patent Package's legal framework is not under discussion.

The Ministry of Economic Development believes that Italy's being part of the Unitary Patent Package is in line with the interests of a country that bets on innovation and internationalisation of its enterprises and that wants to consequently assure more timely and uniform protection on an European level to anyone who invests in research, development, innovation, and therefore to those that patent. Further, the new system should favour battle against counterfeit on a transnational level and consequently help foreign investments in our country".

That is what the Deputy Secretary of The Ministry of Economic Development Ms Simona Vicari has declared today, during the Meeting of Interministerial Committee for European Affairs.

"Having an office of the Unified Patent Court in Italy will allow our enterprises to have a Court in the national territory for the protection of their interests also in Italian language, not forgetting that if we join the Package now we will still hope to have a voice in the systems related to the Unitary Patent renewal and their distribution, and to ask more support for our SME",

the Government representative concluded.

Nearly a week earlier, on 7 May, European Patent Office President Benoît Battistelli was carrying out his own charm offensive in the wake of the CJEU's decisions when hedeclaredto ANSA (the most important Italian news agency):

Has Italy now pasta pointof no return ...?

"I hope Italy will reconsider its position and decide to join", as if "it stays outside, it penalises its enterprises regarding costs, bureaucracy, legal protections and research. I am very happy with this CJEU decision because it confirms under all legal standpoints the Unitary Patent's characteristics and rejects all claims. I know that the Renzi Government is considering the issue, and I hope therefore that the CJEU's decision helps the adoption of a favourable decision for the Italian and European Economy".

Not joining the Unitary patent package, Battistelli continued, could "be a brake to Italians and foreigners wishing to develop research centres in Italy".

Thanks so much, Alberto! Now it seems that the legal challenges to the new system are coming to an end but, as Merpel suggests, the biggest challenge of all remains -- the challenge of making this unknown, untried, hybrid system work in practice. The patent-granting and administration work is the easy bit: all depends on the functionality of the Unified Patent Court.

> "be a brake to Italians and foreigners wishing to develop research centres in Italy"

Has Mr. Battistelli already read my master work and even memorised some parts by heart ? I think the original sounds like:"… the concentration of EU patent protection activities in France and Germany does not promote the competitiveness of other EU States as research and development centres or IP industries areas. "

Bocca della verità says:Italy is opposed to the EU patent only because the strong lobby of the Italian representatives fears the loss of income due to the language solution adopted, unskilled as many if them are in the representation in other languages.Moreover, what can you expect when the country is resented internationally by the never present Mr Masi ?

well solicitors and patent attorneys in the UK had similar fears about the EU patent - but now that iItaly is joining and the EU patent is going to start- they have much larger fears about loss in income if the UK pulls out of the EU and they are left on the side lines. that will reshape the distribution of work to Italian representatives advantage.

2015, and still jokes with Italy and pasta. What is next? To remind everybody that Battistelli is clearly a surname of Italian origin, hence...what?

think you need to loosen up and enjoy one of the few ip blawgs that sprinkles in (corny) humor. what's next. a humorless comment, of course. i don't see any connection between their joke and any sort of demeaning of italians. yeesh.

The first one, as very candidly mentioned in the press release, is that it wants to discuss its cut of the renewal fees now, rather than end up entering afterwards under worse conditions. (Some heads at the Spanish PTO are probably doing the same sums right now).

The second one is that, if the UK ends up leaving the EU after next year's referendum, Italy will become the third country whose ratification of the UPC agreement would be crucial. Consequently, it would be in a good position to negociate that the part of the Central Division that should be going to London under the current arrangements ends up in Milan instead. Even if participation in the UP and the UPC are not necessarily coupled with each other, the Italian government clearly thinks that its position will be further improved by this move.

> The unitary patent is a priority for the Ministry of Economic Development. After the CJEU's decision of 5 May that rejected Spain's claims …

Besides legal aspects, there are also economic considerations, for Italy as well as any other EU Member State.

Costs for users of the unitary system as well as effect on competition between EU Member States still to be seen.

For example, it might appear that the language regime of the UPC and a unitary patent is not a cost reduction measure but merely a shift of the costs from patentees to potential (national) infringers. If German and French companies will be filing unitary patents in German and French and then litigate them in German/French in Munich or Paris with effect for all EU, translation costs for non-French and German defendants might soar.

For example, it might appear that the language regime of the UPC and a unitary patent is not a cost reduction measure but merely a shift of the costs from patentees to potential (national) infringers. If German and French companies will be filing unitary patents in German and French and then litigate them in German/French in Munich or Paris with effect for all EU, translation costs for non-French and German defendants might soar.

I'd advice to read up the UPC Agreement, and in particular Art. 33, concerning the competence of the local and central divisions, and Arts. 49-51, relative to the language arrangements. It isn't that simple, not at all, and I wouldn't say that French- and German-language litigators will enjoy much of an advantage.

Have any Member States already declared intention to set up a local division?

Plenty, as a matter of fact: the Wikipedia article on the UPC, citing pretty solid sources, lists Austria, Belgium, Denmark, France, Germany and Ireland. Germany even intends to set up not one but four local divisions. And the three Baltic states and Sweden seemingly intend to set up a common regional division. Finally, the Italian government's release above seems quite a clear statement of their intention to also set up a local division, and I'd be particularly surprised if the UK didn't set up at least one, especially since neglecting to do so would probably deflect much business to the Irish local division...

I expect most member states to set up a local division or at least participate in a regional division.

> I was trying to say that German and French speaking countries would be in a beneficial position in comparison with other Member States.

> In the list, only Denmark is not German/French speaking.

Belgium is majority Dutch-speaking, and you are (purposely) forgetting the Swedes and Baltics. Also, Belgium, Denmark and the Swedes and Baltics have already announced their intention to also allow English in their local/regional divisions. Indeed, English will be the sole language of proceedings in the Swedish/Baltic regional division.

Please note also that there is a significant overlap between the countries which have already ratified and those which have announced their intention to create a local division. We can expect more local and regional divisions to be announced as more countries ratify. Apart from Italy and the UK, I'd be very surprised indeed if Holland didn't set up its own local division, also allowing English as (sole?) language of proceedings. And Finland will probably choose between joining its Swedish and Baltic neighbours or setting up its own local division.

The remaining countries (Portugal, Luxembourg, Malta, the Central/Eastern European contingent, Greece and Cyprus) probably see too little patent litigation to warrant local divisions, but there have also been rumours of a Central/Eastern European regional division, which presumably would also allow English as language of proceedings...

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